Under Texas law, a surviving spouse has a life estate in the homestead of their deceased souse (see our article entitled “Surviving Spouse Homestead Rights – I Never Want to Fall in Love Again” by clicking here). A life estate gives the surviving spouse the right to reside in the homestead for their lifetime (although there is an obligation to pay bills of the homestead). So, even if deceased spouse had a Will or not, the surviving spouse would have a right to live in the homestead.

Marriage Can Be Voided after Death

A recent Texas case (upheld on appeal) allowed the children to set aside the purported spouse’s homestead rights (a life estate) in their father’s homestead (which was separate property) on the grounds that he lacked sufficient mental capacity to enter into marriage. Texas has a law that if you die within three years after marriage and it is determined the deceased “spouse” lacked mental capacity to marry, then the “marriage” can be voided (which is what happened here) even though there were no divorce proceedings pending at the time of death. As a result, the purported spouse had no homestead rights.

If interested in learning more, consider attending our next free “Estate Planning Essentials” virtual workshop by calling us at (214) 720-0102 or sign up by clicking here. Our goal is to make it easy for you to attend from the comfort of wherever you reside. 

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